The Judiciary has unveiled a new set of procedures and rules to be followed in applying for a declaration of matrimonial property rights in a court of law.
The Judiciary - in the new rules - moved to safeguard the interests and rights of persons involved in the judicial contestation.
According to the rules, property rights can be applied by, among others, a spouse and an executor of a will.
“Any person, including the following persons, may institute civil proceedings claiming any right or relief in relation to matrimonial property; a spouse, any person against whom a spouse has made a conflicting claim in respect of property, trustee in bankruptcy, or an executor under a will,” stated the Judiciary.
Further, the procedures detail timelines under which a person ought to make an application claiming property rights.
The procedures state that an application should be filed within twelve months from the date on which the final order concluding a divorce is issued.
“Such an application shall be filed within twelve months from the date on which the decree absolute is given.”
As to which courts a person may apply a claim, the procedures have stipulated that a case claiming any property whose value exceeds Ksh20,000,000 should be filed at the High Court.
Cases on a property below this value should be heard and determined by the Magistrates courts in accordance with the court’s pecuniary jurisdiction.
For Muslims, the court to which an application is made may, on the request of the parties, be guided by Sharia Law.
Form MP1
To file a petition, the applicant will be required to fill a form MP1 which will define the parties involved in the claim, their addresses (both physical and postal) and contacts.
The form will also set out the date on which the marriage was dissolved as well as the issues or questions to be determined by the court.
"The claim shall be made by way of Originating Summons, returnable before a Judge or Magistrate, in Form MP1 as set out in the Schedule, setting out— the parties to the proceedings; the parties’ respective postal and physical addresses for service, email addresses and telephone contacts, if any; the date on which the marriage was dissolved; the issues or questions to be determined by the court, set out in a concise manner," the new rules read in part.
The rules also state that a person may claim ownership of property rights while still in a marriage. However, the applicant will be required to state clearly the grounds on which the claim is made.
The claim made under these Rules shall be supported by an affidavit stating among others, the grounds on which the claim is made and whether there has been any previous claim relating to the matrimonial property in question.
The new rules were prepared by the Rules Committee, a a special committee in the Judiciary tasked with the role of maintaining a register of rules and procedures used in guiding the operations of the courts.
